Background:
Brackeen v. Bernhardt HAALAND threatens to topple ICWA and place Native American children at risk. Supreme Court
Justices agree to review constitutionality of Indian Child Welfare Act (Amy Howe, February 28, 2022)
Earlier article worth a read: https://blog.americanindianadoptees.com/2019/05/op-ed-preserve-indian-child-welfare-act.html
Kate Fort : Transfer to Tribal Court Case from Iowa Supreme Court [ICWA]
210243_816EBFA59A154
This
is a very useful decision directly addressing one for the most
difficult parts of a transfer process--whether the state court will use a
best interest analysis to determine jurisdiction.
These are not reasons to deny a tribe jurisdiction over a child welfare case:
The State argued that transfer should be denied because of the lack of
responsibility by Mother and Father, the efforts of the foster parents to promote
the children’s Native American heritage, and the good relationship between the
current professionals and the children. The guardian ad litem for the children
joined the State in resisting the transfer of the case to tribal court.
Oh, and would you look at that, a CASA:👈 👇
The juvenile court noted that the court appointed special advocate (CASA) for the children recommended that the parental rights of the parents be terminated and the children continue living with the foster parents. (And a full picture of the racist underpinnings of the modern child welfare system helps develop a fuller view of CASA programs. The term structural racism can call to mind invisible forces that shape the world in a discriminatory way.)
But
don't worry--the Iowa Supreme Court clearly channeled the Washington
Supreme Court in its thoughtful discussion of ICWA and its purpose,
summarizing that
The federal ICWA and accompanying regulations and guidelines establish a framework for consideration of motions to transfer juvenile matters from state court to tribal court. Although good cause is not elaborated at length, both the statute and regulations state in some detail what is not good cause. Absent an objection to transfer or a showing of unavailability or
substantial hardship with a tribal forum, transfer is to occur. Clearly, Congress has an overall objective in enacting ICWA to establish a framework for the preservation of Native American families wherever possible.
The Court goes on to discuss the Iowa ICWA at length, along with some bad caselaw in Iowa, specifically the In re J.L. case, which is a really awful decision and has been a pain to deal with for years.
This Court states,
State courts have struggled with the statutory question of whether federal
or state ICWA statutes permit a child to raise a best interests challenge to
transfer to tribal courts. In In re N.V., 744 N.W.2d 634, we answered the
question. After surveying the terms of the federal and state ICWA statutes, we
concluded that the statutes did not permit a child to challenge transfer on best
interests grounds. Id. at 638–39.
***
In short, there can be no substantive due process violation arising from a
statute that refuses to allow a party to present on an issue irrelevant to the
proceeding. To that extent, we overrule the holding ofIn re J.L. (emphasis ADDED)
***
In conclusion, if there is no objecting child above the age of twelve, we hold
that the transfer provisions of ICWA which do not permit a child from raising the
best interests of the child to oppose transfer does not violate substantive due
process.
Therefore,
In an ICWA proceeding, the United States Supreme Court observed that
“we must defer to the experience, wisdom, and compassion of the . . . tribal
courts to fashion an appropriate remedy” in Indian child welfare cases. Holyfield,
490 U.S. at 54 (quoting In re Adoption of Halloway, 732 P.2d at 972). These
observations apply in this case
There
is a small dissent on whether the Father could appeal this case, but no
issues with the Tribe's appeal. Also, a reminder that the issue of
jurisdiction was never a question Brackeen and decisions like this one are tremendously helpful for tribes seeking to transfer cases.
FYI:
Volunteer child advocates, or “CASAs” (Court Appointed Special Advocates), are lay volunteer guardians ad litem appointed by the family court to represent the “best interests” of children who enter the child welfare system.
(report)
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| | [[...what is particularly striking about the proliferation of volunteer CASA programs is just how visible, and visibly racist, they are. When a CASA is appointed to speak for a child in family court, the child’s parents lose one of the most cherished responsibilities any person can have—the power to decide what is best for their own children and speak on their behalf. This power is not transferred to the child, but rather to the CASA herself; once appointed, it is the CASA who voices “the child’s” position, based on the CASA’s own assessment of what the CASA thinks is best for the child. 4 When that power—not just the power to determine a child’s fate, but the power to even speak one’s own opinion on the matter—is distributed away from poor families and children of color and given to a group of middle-class white volunteers, the racial bias in the system—the structural racism—is not just clearly visible, but is actually given a seat at the table in court for all to see.
And that power works real, tangible harms on families who encounter the child welfare system. The simple act of having a CASA assigned increases the chance that a parent’s rights to her child will be terminated, 5 an outcome that has been called the “civil death penalty.”
CASA programs have carved out a unique and in some ways untouchable role in child welfare decision-making nationwide.
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